How unincorporated associations hold property

The following Property practice note provides comprehensive and up to date legal information covering:

  • How unincorporated associations hold property
  • What is an unincorporated association?
  • No separate legal capacity
  • Receiving and holding property
  • Land held for present members beneficially
  • Trust for members
  • Trust for the purposes of the association
  • Contractual basis
  • Bona vacantia
  • Mortgaging land
  • More...

How unincorporated associations hold property

What is an unincorporated association?

In Koeppler, an unincorporated association was described as ‘an association of persons bound together by identifiable rules and having an identifiable membership’. This is a distillation of the lengthier definition found in Burrell.

From these definitions (and others) it is possible to deduce that an unincorporated association must:

  1. involve at least two members who are engaged in a non-commercial activity which has a degree of permanence about it, and

  2. have contractual rules which bind all the members

Many sports clubs, members’ clubs, political parties, charities and not-for-profit organisations operate as unincorporated associations. Most operate with very little, if any, real degree of formality.

No separate legal capacity

An unincorporated association does not have a legal capacity separate from its members. This lack of legal personality causes a number of problems in relation to unincorporated associations. One particular problem is that it means an unincorporated association cannot own property in its own name; instead, any property must be held by individuals on behalf of the association.

Receiving and holding property

Understanding the different ways in which an unincorporated association can receive and hold property enables a solicitor to determine:

  1. whether property has been validly transferred to the association (if not, it will be held on a resulting trust for the transferor)

  2. who is entitled to the association’s property if the association is wound

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